Anyone wanting to access Palomar Health’s website now has to agree to a set of rules.
A few weeks ago, I came across Palomar Health’s new terms of use agreement. It struck me because I hadn’t seen anything like it before from a public agency.
Before entering the site, users are required to either accept or reject the agreement. But rejecting it means users can’t access the website. Instead, the site reloads and redirects users right back to the agreement.
“If you do not agree to all of these terms, please do not use this website,” the agreement says.
Palomar Health is a public health care district in North County that operates Palomar Medical Centers in Escondido and Poway.
Palomar Health is the only public health care district with a terms of use agreement to access its website.
As a public institution, imposing a restriction on access to public records conflicts with several state laws that govern public access including the Brown Act, the California Public Records Act and the Health and Safety Code.
Public health care districts are a form of local government called special districts, meaning they are independent from city and county governments and are governed by a board of directors elected by the public.
Unlike other hospitals, health care districts have an added responsibility to the state and to the public. Their obligations include governing public records, record keeping, holding elections and ensuring public access to documents.
Palomar’s terms of use agreement, though, seems to contradict that.
In about seven pages and almost 3,000 words, the agreement outlines about a dozen clauses that users must accept to access the website.
One of those clauses is a copyright agreement that tells users: “You may not copy, reproduce, republish, post, retransmit, or distribute in any way any of the information or materials in this website without the prior written consent of Palomar Health.”
I asked Palomar Health if I could copy and publish language from the terms of use agreement, and they did not give me an answer.
Instead, a communications representative asked if I would be writing about the other health care districts, as well. Because the 75 other health care districts in the state don’t have terms of use agreements restricting access to their websites, my answer was no.
David Snyder, executive director of the First Amendment Coalition, said he also has never seen anything like this from a public agency. In fact, public agencies are required to provide access to public records in a way that is unencumbered with conditions and terms, he said.
“The agency I don’t think can impose restrictions about how members of the public use those records, including copying and sharing them,” Snyder said. “I think there’s a pretty strong argument that if they attempted to do so, it would be prior restraint under the First Amendment.”
Prior restraint is government action that prohibits speech or other expression before the speech happens. Snyder said copying and distributing public records is a form of expression.
There’s also the matter of the Brown Act – a set of laws that govern meetings of public agencies. As a public agency, Palomar Health is subject to these laws.
The Brown Act has a list of requirements when it comes to public meetings including rules about meetings being open to the public. There are also rules about those meetings being agendized, meaning there has to be an agenda that is publicly distributed at least 72 hours before the meeting.
“Those meeting agendas are required, and it’s required that anyone be able to look at them,” Snyder said. “That doesn’t mean they have to distribute it to 40 million people in California, but it does mean it has to be in a public place where anybody can access it. So, if they are imposing terms and conditions on simply accessing meeting agendas, then that’s definitely problematic.”
Similarly, the California Public Records Act and the Health and Safety Code require special districts to have an internet website with access to the adopted budget, a list of current board members, information regarding public meetings, financial reports and more.
That means, in addition to requiring Palomar Health to provide records in response to public records requests, the Public Records Act and the Health and Safety Code require some specific records to be available to the public through a website.
And when it comes to that public access, the Public Records Act allows agencies to “adopt requirements for itself that allow for faster, more efficient, or greater access to records.”
I reached out to several members of the community and health care professionals to ask if there is an agency that oversees public health care districts, one that has authority over districts like Palomar Health.
A few people pointed me to State Attorney General Rob Bonta’s office, but a representative said in an email that they are “unable to provide legal advice or analysis” regarding my questions.
I just read the story about the Palomar Health care website restrictions which appear to contradict law. Will there be a follow up story in which BOD members are interviewed? Or information about which government agency a voter could contact to complain about Palomar’s overreach? Please don’t just let this story die. I doubt any other journalistic organization will pick this up, so it’s up to you to follow through for your readers. Keep up the good work.
This isn’t the only violation by Palomar Healthcare. Under California’s SB380 amendment to its Medical Aid in Dying law, the End of Life Option Act (EOLOA), healthcare entities are required to post their EOLOA policy on their websites. While perhaps technically Palomar Healthcare is not violating this law, (but the last time I looked, they were) it is clearly violating the the spirit of the law – i.e., that terminally ill people should have the right to know the policies of the entity whose services they are purchasing. It is called transparency.